Plaintiffs Press Appeals Court to Rule That FOSTA Violates the First Amendment

Two human rights organizations, a digital library, a sex worker activist, and a certified massage therapist on Monday appealed a ruling that denied  their constitutional challenge to FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act), an overbroad and censorious internet law that harms sex workers.

The plaintiffs, Woodhull Freedom Foundation, Human Rights Watch, The Internet Archive, Alex Andrews, and Eric Koszyk, have been challenging the law since it was enacted in 2018. The district court hearing their challenge dismissed the case last month, ruling that FOSTA did not violate the First Amendment.

The plaintiffs are disappointed in the district court’s ruling and disagree with it. As they have repeatedly argued, FOSTA is one of the most restrictive laws governing online speech and it has resulted in significant harm to sex workers and their allies, depriving them of places online to advocate for themselves and their community.

FOSTA created new civil and criminal liability for anyone who “owns, manages, or operates an interactive computer service” and creates content (or hosts third-party content) with the intent to “promote or facilitate the prostitution of another person.” The law also expands criminal and civil liability to classify any online speaker or platform that allegedly assists, supports, or facilitates sex trafficking as though they themselves were participating “in a venture” with individuals directly engaged in sex trafficking.

FOSTA doesn’t just seek to hold platforms and hosts criminally responsible for the actions of sex-traffickers. It also introduces significant exceptions to the civil immunity provisions of one of the internet’s most import laws, 47 U.S.C. § 230. These exceptions creates new criminal and civil liability for online platforms based on whether their users’ speech might be seen as promoting or facilitating prostitution, or as assisting, supporting or facilitating sex trafficking.

The appeal marks the second time the case has gone up to the U.S. Court of Appeals for the District of Columbia. The plaintiffs previously prevailed in the appellate court when it ruled in 2020 that they had the legal right, known as standing, to challenge FOSTA, reversing an earlier district court ruling.

The plaintiffs are represented by EFF, Davis, Wright Tremaine LLP, Walters Law Group, and Daphne Keller.